international law and the control of revolutionary

Washington University Law Review Washington University Law Review

Volume 1961 Issue 3

January 1961

International Law and the Control of Revolutionary Activities by International Law and the Control of Revolutionary Activities by

Political Refugees Under American Law Political Refugees Under American Law

Manuel R. García-Mora University of Detroit

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Recommended Citation Recommended Citation Manuel R. García-Mora, International Law and the Control of Revolutionary Activities by Political Refugees Under American Law, 1961 WASH. U. L. Q. 195 (1961). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1961/iss3/1

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WASHINGTON UNIVERSITY

LAW QUARTERLYVolume 1961 June, 1961 Number 3

INTERNATIONAL LAW AND THE CONTROLOF REVOLUTIONARY ACTIVITIES

BY POLITICAL REFUGEES UNDER AMERICAN LAW

MANUEL R. GARCIA-MORA*

INTRODUCTION

The unprecedented exodus of political refugees from countriesdominated by tyrannical regimes has posed the interesting and vitalproblem of controlling their activities in countries of asylum. Whilethe right of a State to grant asylum to those fleeing from persecutionand oppression is unquestioned,' the further question is immediatelypresented as to how to prevent these persons from engaging in activi-ties designed to undermine the political institutions of their nativeland. This is clearly a matter which not only involves the goodrelations between the State of refuge and that of which the refugeesare nationals, but which also seriously endangers the peace andsecurity of mankind. It is therefore a problem that must be treated inthe context of such values as peace and security that every govern-ment is bound to promote and cultivate within its jurisdiction. Bear-ing this in mind, this article will explore the principles of internationallaw that regulate the subject and the manner in which they areapplied by the United States.

I. THE PRINCIPLES OF INTERNATIONAL LAW

Concurrent with the right of a State to grant asylum to politicalrefugees, international law recognizes the correlative duty to preventthese persons from committing acts destructive of the political

* Professor of Law, University of Detroit.

1. The right to give asylum is not the question here. This right of the State isgenerally recognized. See, for elaboration, Garcia-Mora, International Law andAsylum as a Human Right (1956).

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and social order of the State from which they have escaped.2 Thisduty is clear enough both on principle and policy, and has been saidto be nothing more than a phase of the general duty of a State toprevent within its jurisdiction the commission of injurious actsagainst friendly foreign governments.3 But looking comprehensivelyat the issue, and insofar as it concerns political refugees in places ofasylum, the formulation of the duty in this manner is clearly anattempted simplification of a principle which must be explained ondeeper grounds. Thus, behind the apparently simple duty of a Stateto prevent refugees from plotting against the institutions of othernations, lie far-reaching legal and political considerations. It isbelieved that these are precisely the considerations which are sub-verting the very foundations of the traditional law. Two considera-tions can unmistakably be discerned in this connection.

First, it is common learning among international lawyers that theright of jurisdiction which governments exercise within their terri-tory carries with it the obligation to protect the rights of othernations. This is a prescription resulting from the exercise of sov-ereignty and unquestionably falling within the competence of theterritorial State.4 Judge Max Huber, the sole arbitrator in the cele-brated Island of Palmas Case between the United States and theNetherlands, summarized this obligation in the following terms:

Territorial sovereignty.., involves the exclusive right to displaythe activities of the State. This right has as a corollary a duty:the obligation to protect within the territory the rights of otherStates, in particular their right to integrity and inviolability inpeace and in war, together with the right which each State mayclaim for its nationals in foreign territory.5

The above passage, though written over thirty years ago, hasacquired a special significance for the contemporary world, for it notonly requires the prevention of injurious acts against foreign States,"but, perhaps more important, the protection of the rights of othernations as well. A careful study of this latter obligation may conceiv-ably reveal serious difficulties on the practical level, for since the

2. 2 Podest. Costa, Derecho Internacional Pfiblico 245-48 (3d ed. 1955).3. Apparently Professor Quincy Wright puts all the emphasis upon this

principle. See Wright, Subversive Intervention, 54 Am. J. Int'l L. 521, 528 (1960).4. 1 Fauchille, Traitd du Droit International Public 3-10 (8th ed. 1925).5. Island of Palmas Case (United States v. Netherlands). For text see 2 U.N.

Rep. Int'l Arb. Awards 829 (1949). (Emphasis added.)6. Judge John Bassett Moore, in his dissenting opinion in the Lotus Case said:

"It is well settled that a State is bound to use due diligence to prevent the com-mission within its dominions of criminal acts against another nation or its people."Case of the S.S. "Lotus," P.C.I.J., Ser. A, No. 10, at 88 (1927).

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CONTROL OF REVOLUTIONARY ACTIVITIES

rights of other governments must be protected within the internaljurisdiction of all States, it can convincingly be argued that the worldcommunity is likely to become a system of mutual assistance, thushelping to perpetuate tyrannical regimes.7 It is largely for thisreason that Judge Hersch Lauterpacht argued in 1928 that a Statedoes not have the obligation to protect the constitution of a foreigngovernment whose ideology is distasteful to its own citizens." Indeed,the deep ideological differences between governments would seem togive ample support to this position. In principle, therefore, therewould seem to be nothing wrong with allowing the residents of aState to help other peoples to rid themselves of a totalitarian regime.9

This argument, however, is highly deceptive, for it ignores the well-established principle that in the presence of a civil strife or otherinternal disturbances in another country, States must abstain fromparticipating in the conflict either directly by actual governmentalinterference or indirectly by allowing citizens and aliens to help eitherside to the conflict.'0 On this view, the toleration of revolutionaryactivities by refugees would surely amount to an act of intervention inviolation of international law.,, The force of this suggestion revealsitself with all its cogency when remembering that under traditionallaw if a State does not suppress revolutionary activities taking placewithin its jurisdiction, the customary right of self-defense on thepart of the menaced government is readily conceded.12

The second important consideration supporting the duty of theState to prevent refugees from engaging in revolutionary activitiesagainst their former government has been seen to be indissolublylinked with the right of a State to grant asylum under internationallaw. It is generally accepted that asylum is a right which exclusivelybelongs to the State, and the latter can exercise it in accordance withthe requirements of its laws.3 Appealing as this theory is to concep-tions of absolute sovereignty, it nevertheless remains true that theright to grant asylum is conferred upon States by international law,

7. Jessup, A Modern Law of Nations 184-87 (1948).8. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign

States, 22 Am. J. Int'l L. 105, 117 (1928).9. Cf. Garcia-Mora, International Responsibility for Subversive Activities and

Hostile Propaganda by Private Persons Against Foreign States, 35 Ind. L.J. 306(1960).

10. Lauterpacht, Recognition in International Law 229 (1947).11. Rugier, Les Guerres Civiles et le Droit des Gens 415, 417 (1903).12. Cf. Thomas & Thomas, Non-Intervention: The Law and Its Import in the

Americas 274 (1956).13. In Chandler v. United States, 171 F.2d 921, 935 (1st Cir. 1948), the Court

of Appeals said: "... the right [of asylum] is that of the State voluntarily tooffer asylum, not that of the fugitive to insist upon it."



and, that, though governments have a broad discretion in theapplication and interpretation of the pertinent facts, it does notfollow that they are not bound by any consideration at all.14 It

should carefully be noted that in granting or denying asylum Statesare not performing a legally indifferent act of national policy, butrather an international function of the greatest consequence for theworld community.15 If these observations be correct, it will naturallyfollow that in the fulfillment of this function international law de-mands that, consistently with the obligations of friendship andsolidarity between nations, political refugees should not be permittedto plot against the institutions of their native country. 0 It shouldthus be apparent that the right to grant asylum is given by interna-tional law to be exercised under the implied condition that the Stateof refuge does not become a base of subversive activities againstanother nation. It should similarly be clear that the position ofpolitical refugees is radically different from that of the nationals ofthe State of refuge, for while in respect to the latter a State maysuccessfully escape international responsibility on purely internalconstitutional grounds,17 as regards political refugees, however, themere granting of asylum would implicitly give rise to the presumptionthat the State has done so under the condition that such refugees beadequately controlled in their political activities.' The non-fulfillmentof this duty is clearly an abuse of right for which the governmentinvolved is internationally liable. 9 This right-duty dichotomy auto-

14. Judge John Bassett Moore said that in granting asylum a State acts "inthe light of its own interests, and of its obligations as a representative of socialorder." 2 Moore, Digest of International Law 757 (1906).

15. Morgenstern, The Right of Asylum, 26 Brit. Yb. Int'l L. 1949, at 327,354-57 (n.d.).

16. Thus, on March 15, 1960, the United Nations Human Rights Commissionadopted a Draft Declaration on the Right of Asylum, which says in Article 4that "Persons enjoying asylum should not engage in activities contrary to thepurposes and principles of the United Nations." For text, see U.N. Eco. Soc.Council Off. Reec. 30th Sess., Supp. No. 8, at 17 (1960).

17. It will be seen (infra p. 203 ff.) that the United States has avoided interna-tional responsibility by saying that the suppression of these activities might becontrary to the constitutional guarantees of freedom of speech and of the press.The files of the State Department are filled with such communications to foreigngovernments. See, 2 Hackworth, Digest of International Law 141 (1941).

18. In this connection, Article 2 of the Convention Relating to the Status ofRefugees, signed at Geneva on July 28, 1951, says that "Every refugee has dutiesto the country in which he finds himself, which require in particular that he con-form to its laws and regulations as well as to measures taken for the maintenanceof public order." See U.N. Conference of Plenipotentiaries on the Status of Refu-gees and Stateless Persons, Final Act and Convention Relating to the Status ofRefugees (A/Conf. 2/108) at 17 (1951).

19. As to the application of the abuse of right doctrine in international law,



matically operates in the international legal order, for it is firmlygrounded on the recognition of a community of interests existing inthe world community imperatively demanding the suppression withineach country's territory of harmful activities directed against foreignStates.2 0 This condition is by far the most satisfactory one, for itfrankly recognizes that a right granted by international law cannotbe used to violate international law itself. 21

II. THE DOCTRINE IN HISTORICAL PERSPECTIVE

The foregoing observations are not really new, for they were well-established in the doctrine of those who have been traditionallyregarded as the "fathers of international law." It may therefore bebeneficial to discuss their doctrines, if only to perceive the historicalconsistency of the principle here treated.

While Grotius explicitly said that "a permanent residence oughtnot to be denied to foreigners who, expelled from their homes, areseeking refuge," he immediately added, as a condition of asylum,"provided that they submit to the established government and observeany regulations which are necessary to avoid strifes.122 It can ofcourse be suggested that in imposing this condition Grotius wasreally thinking in terms of the public order and internal unity of theState of refuge. However, a closer observation of his views patentlyreveals that to Grotius dissensions were fatal ills of society to beprevented at all costs and, thus, the maintenance of peace and orderwas the most important value of the law.23 Coupling these viewswith his frank denial of the right of revolution, 24 one must inevitably

see, Lauterpacht, The Function of Law in the International Community ch. 14(1933). See also, Dissenting Opinion of Judge Alejandro Alvarez in the AdvisoryOpinion of the International Court of Justice regarding the Competence of theGeneral Assembly for the Admission of a State to the United Nations, [1950]I.C.J. Rep. 4, 14.

20. U.N. Secretariat, Survey of International Law, U.N. Doc. No. A/CN.4/1Rev. 1, at 34-35 (1949).

21. It is for this reason that the Universal Declaration of Human Rights,adopted by the United Nations General Assembly on December 10, 1948, inguaranteeing the right of asylum in Article 14 adds that "This right may not beinvoked in the case of prosecutions, genuinely arising from non-political crimes orfrom acts contrary to the purposes and principles of the United Nations." Forthe text of the Declaration, see 43 Am. J. Int'l L. Supp. 127 (1949).

22. Grotius, De Jure Belli ac Pacis Libri Tres bk. 2, ch. 2, § 26 (Kelsey'stransl. 1925).

23. Id. at bk. 1, ch. 4. See also Lauterpacht, International Law and HumanRights 116 (1950).

24. He says in respect to the right of revolution:But as civil society was instituted in order to maintain public tran-quility, the State forthwith acquires over us and our possessions a greater



conclude that Grotius regarded revolutionary activities by refugeesagainst their own State as equally reprehensible, simply because theyare likely to produce the type of internal disharmony which he vigor-ously condemned. But Grotius' views on the subject cannot be ade-quately understood unless it is remembered that to him natural lawimposed upon the States the double duty of granting asylum to thepersecuted and of acting as agents of the world community in thepreservation of peace and order.25 Thus viewed, the toleration ofrevolutionary activities by refugees is highly inconsistent with thelatter obligation. One may safely say that the Grotian contributionhas not lost its validity for the contemporary world.

Like his illustrious predecessor, Vattel insisted on limiting theright of asylum by conditions imposed by the State of refuge.20

Unlike Grotius, however, his limitations on asylum were motivatedby a firm desire to avoid complications with foreign governments.In this connection he said:

But though this right [the right of asylum] is necessary andperfect in the general view of it, we must not forget that it is butimperfect with respect to each particular country. For, on theother hand, every nation has a right to refuse admitting a for-eigner into her territory, when he cannot enter without exposingthe nation to evident danger, or doing her a manifest injury.21

In line with the preceding passage, and in the part of his bookdealing with the duties of one nation towards the other, he emphat-ically said that:

even in States which freely admit foreigners it is presumed thatthe sovereign only grants them access on the implied conditionthat they will subject to the laws-I mean to the general lawsestablished for the maintenance of good order and not operativeonly in the case of citizens or subjects. 28

As Vattel believed that foreigners were subject to the laws ofgood order on equal footing with citizens or subjects, the abovepassage acquires a more useful meaning when viewed against thebackground of his doctrine regarding the duty of a nation to prevent

right, to the extent necessary to accomplish this end. The State, there-fore, in the interest of public peace and order, can limit that commonright of resistance .... If, in fact, the right of resistance should remainwithout restraint, there will no longer be a State, but only a non-socialhorde...." Grotius, op. cit. supra note 22, at bk. 1, ch. 4, § 2(1).

25. For a discussion of Grotius' views, see Basdevant, in Les Fondateurs duDroit International 125-267 (1904).

26. Vattel, Le Droit des Gens bk. 2, ch. 4, § 56 (Fenwick's transl. 1916).27. Id. at bk. 1, ch. 19, § 230.28. Id. at bk. 2, ch. 8, § 101.



its citizens from committing acts injurious to the peace of a foreignnation. Since for present purposes this is particularly relevant, hiswords must be quoted in extenso here. He said:

The Nation, or the sovereign, must not allow its citizens toinjure the subjects of another State, much less to offend thatState itself; and this not only because no sovereign shouldpermit those under his rule to violate the precepts of the naturallaw, which forbids such acts, but also because Nations shouldmutually respect one another and avoid any offense, injury orwrong; in a word, anything which might be hurtful to others. Ifa sovereign who has the power to see that his subjects act in ajust manner permits them to injure a foreign nation, either theState itself or its citizens, he does no less a wrong to that nationthan if he injured it himself. Finally, the very safety of the Stateand of society at large demands this care on the part of everysovereign. 29

It can therefore be seen that Vattel considered the obligation toprevent refugees from engaging in revolutionary activities against theinstitutions of their country as proceeding from a mutual duty topromote justice between nations. Underlying this obligation is thenecessity of co-existence of the States in the world community, foronly then can the fundamental rights of all States be adequatelyassured. To permit refugees to injure their own State from foreignterritory, in the Vattelian conception, would clearly violate theformer's fundamental right of independence, thus seriously impairingthe harmonious relations that nations must maintain at all times.This aspect of the Vattelian position has remained unchallenged, formuch of the present-day doctrine largely proceeds upon that view.

Such assertions of the "fathers of international law" raise impor-tant points of substantive international law. For it seems fairlyclear that the peaceful coexistence of nations in the world community,where the rights of sovereignty and equality of States are vital postu-lates of the law, of necessity implies a mutual obligation to suppressrevolutionary acts directed against a friendly foreign nation.3o Today,as when Grotius and Vattel wrote, the requirements of peaceful co-existence constitute the raison d'etre of the duty of prevention im-posed upon the asylum State.31 The crucial problem is, therefore,whether a government values the interest of the world communityin peaceful co-existence sufficiently to impose upon itself the obliga-

29. Id. at bk. 2, ch. 6, § 72.30. Kuhn, The Complaint of Yugoslavia Against Hungary with Reference to

the Assassination of King Alexander, 29 Am. J. Int'l L. 87, 89 (1935).31. Wright, supra note 3, at 531.



tion to prevent and punish revolutionary activities which endangergood relations between nations. 2

If the above observations be correct, it will at once be seen that theproblem of allowing political refugees to engage in revolutionaryactivities is not exclusively confined to the relations between States.It is similarly a matter in which the world community has interestsvitally at stake. One element which might have prevented an adequateapproach to this problem is that historically the possibilities thatrefugees might have engaged in revolutionary activities did not reallyarise until the late nineteenth and early twentieth centuries. Undereighteenth century conditions political refugees, particularly thoseaccused of an offense against the State, were easily extradited underexisting treaties Z3 In fact, early extradition treaties were preciselydesigned to make their extradition possible, so that the country fromwhich the refugees had fled could inflict punishment according toits own laws.34 This eighteenth century experience proved to beinadequate for twentieth century conditions, for refugees who unsuc-cessfully rebelled against oppression have been guaranteed asylumsince the ninteenth century when the Belgian Parliament enacted acelebrated law exempting political offenders from extradition.35 More-over, refugees today have acquired an ever-increasing political impor-tance, for States are likely to use them as a means of encouragingsubversion in their nation without the resort to open intervention.0Since for this purpose refugees constitute effective and concealedmeans of attack, they are invariably assured support by the govern-

32. Lord Jowitt, The Value of International Law in Establishing Co-operationAmong Nations, 1 Int'l L.Q. 295 (1947).

33. This point is well illustrated by the Treaty of July 18, 1829, signed betweenFrance and Switzerland. Cited in Billot, Trait6 de l'Extradition 109 (1874).For a history of early practice, see Clarke, A Treatise Upon the Law of Extradi-tion ch. 2 (4th ed. 1903).

34. This practice was endorsed by Grotius, who speaking of political offenders,said: "In the present and in recent generations, and in the majority of Europeancountries, this right, which we have discussed, of demanding for punishment thosewho have fled beyond the frontier, has been exercised only with respect to crimesthat affect the public weal or that manifest extraordinary wickedness." Grotius,op. cit. supra note 22, at bk. 2, ch. 21, § 5(5).

35. This law was enacted on October 1, 1833. See Beauchet, Trait6 de I'Extra-dition 180-277 (1899).

36. In discussing the threat to the political independence and territorial integ-rity of Greece before the First Committee of the General Assembly, the Greekrepresentative called attention to this in the following terms: "At present newstrategic conditions [have] widened the scope of the problem; aggression took lessand less the form of direct attack, but more and more that of disguised subversiveaction." See U.N. Gen. Ass. Off. Rec. 3d Sess., 1st Comm., 176th Meeting at 314(1948).



ment in whose jurisdiction asylum has been given.3 It is precisely atthis point that international law immediately becomes operative, forwhat international law requires is that the government in questionrefrain from tolerating groups intending to engage in revolutionaryplots against another State. There is ample evidence which givesfoundation to the assertion that the toleration of revolutionary activi-ties by refugees is an act of aggression for which the asylum Stateis internationally responsible.3 8

With these considerations in mind, it becomes quite apparent thatbecause of national policies, this branch of the law is likely to exhibita high degree of instability. It is interesting but not at all surprisingto note that the legal practice of the States in this area is governedby a variety of rules dependent upon a disturbing number of actors.These will be seen in the substantive treatment of the law of theUnited States and the frustrated attempts of international law ateffective regulation.

III. THE LAW AND PRACTICE OF THE UNITED STATES

The law of the United States regarding subversive acts of refugeesagainst their government is exclusively confined to obligations result-ing from the laws of neutrality relating to an international or a civilwar. It has thus become well-established that political acts of refugeesagainst a foreign government are not punished unless they form partof a military or naval expedition against a State with which theUnited States is on friendly terms.3 9 In respect to the punishment ofhostile military expeditions, the statute in question says:

Whoever, within the United States, knowingly begins or setson foot or provides or prepares a means for or furnishes themoney for, or takes part in, any military or naval expedition orenterprise to be caried on from thence against the territory ordominion of any foreign prince or state, or of any colony, district,or people with whom the United States is at peace, shall be finednot more than $3,000 or imprisoned not more than three years, orboth.4 0

37. See the recent dispute between Tunis and the United Arab Republic regard-ing a Tunisian refugee who engaged in revolutionary activities against Tunsiafrom the Territory of the United Arab Republic. N.Y. Times, Feb. 8, 1961, p. 9,Col. 1.

38. Sohn, Cases on United Nations Law 850-58 (1956).39. For a discussion of hostile military expeditions, see Garcia-Mora, Inter-

national Law and The Law of Hostile Military Expeditions, 27 Fordham L.Rev.308 (1958).

40. Foreign Relations Act, 18 U.S.C. § 960 (1958). For the application of thisprovision, see 7 Hackworth, op. cit. supra note 17, at 397-404.



In interpreting the above statute, the courts have uniformly heldthat a military expedition is characterized by an association ororganization of a military character,41 having a common design ofhostile operation against a friendly State. 42 Since advocating andengaging in revolutionary action against a foreign government lackboth of these conditions, they are likely to remain unpunished, forunfortunately no legislation specifically covers such situations. Mostof these principles are instructively illustrated by communications ofthe State Department answering complaints of foreign governmentsfor alleged revolutionary activities taking place within the UnitedStates. Thus, on September 5, 1906, the federal government arrestedmembers of a Mexican revolutionary junta for attempting to initiatea military expedition against Mexico from the United States. 3 Theevidence conclusively showed that a large body of armed men wereattempting to cross the frontier to overthrow the Government ofMexico. 44 Subsequently, however, when the Mexican Governmentbrought to the attention of the State Department certain plots origina-ting along the border of the American side, the United StatesGovernment declined to act on the grounds that there was not yet anyevidence that the persons involved had violated the neutrality of theUnited States by organizing a military expedition against Mexico.45

Similarly, when in 1885 the British Government inquired whetherparticipation in the Irish National League, an organization to promoteinsurrection in Ireland, was an offense against the sedition statutesof the United States, the State Department succinctly answered that"treason and sedition made punishable under those statutes are trea-son and sedition against the United States, and they do not makepunishable treason and sedition against foreign sovereigns.""10 Itmay be pertinent to add that the State Department instructed theBritish Government that the persons so acting might be amenableto the jurisdiction of the courts of the states. 7 Also in a communica-tion of July 31, 1885, addressed to the Spanish Minister, relating torevolutionary activities of the supporters of the Cuban insurrection,the State Department expressed similar views in an even more definiteform: "It [the United States] does not assume to visit with penalty

41. United States v. Tauscher, 233 Fed. 597, 599-600 (S.D.N.Y. 1916).42. Wiborg v. United States, 163 U.S. 632, 653-54 (1896).43. See Note of the Acting Secretary of State to Ambassador Thompson, Sept.

11, 1906, 2 Hackworth, op. cit. supra note 17, at 336-37.44. Id. at 337-38.45. Note of Ambassador Creel to Secretary of State Root, March 4, 1907.

Id at 339.46. Note to Secretary of the State of Bayard to the British Minister, Mr.

Harris, April 2, 1885, 2 Moore, op. cit. supra note 14, at 431.47. Id. at 432.



conduct, which if committed within a foreign jurisdiction, might bepunished therein."48 Finally, President Grover Cleveland's fourthmessage to Congress, in reference to the revolutionary activities ofCubans in the United States, deplored that "the spirit of our institu-tions and the tenor of our laws do not permit [revolutionary activi-ties] to be made the subject of criminal prosecution. 4 9

The body of evidence thus gathered would seem to make it clearthat in American law a revolutionary activity becomes a punishableoffense only if it takes the form of a military or naval force.5 0 Con-fronted with this technical legal position, and insofar as revolution-ary activities stricto sensu might be involved, the interesting questionsquarely arises as to how far the United States Government is boundby the international law rules which impose upon States the duty toprevent refugees from engaging in plots against their former govern-ment. This question is the more pointed since a substantial part ofthese rules has been embodied in many treaties, some of which havebeen subscribed to by the United States. Particularly instructive inthis connection is the Pan-American Convention on the Duties andRights of States in the Event of Civil Strife signed at Havana onFebruary 20, 1928,51 which binds the parties "to use all means attheir disposal to prevent the inhabitants of their territory, nationalsor aliens, from participating in, gathering elements, crossing theboundary or sailing from their territory for the purpose of starting orpromoting civil strife."' 52 In similar vein, the United Nations Charter 3

and the Charter of the Organization of American States54 containprovisions of a general nature prohibiting the intervention of a Statein the internal affairs of another. There can be no doubt that theseprovisions impose upon the United States a specific obligation toprevent revolutionary activities by any person, which is clearly atvariance with the pronouncements of the State Department abovereviewed. Most recently, however, the State Department has acknowl-edged the binding character of this obligation when clearly incorpo-rated into a treaty to which the United States is a party.5 5 The exis-

48. Note of Secretary of State Bayard to Minister Valera, July 31, 1885, U.S.Foreign Rel. 1885, at 776 (1886).

49. U.S. Foreign Rel. 1896, at xxxi (1897).50. United States v. Tauscher, 233 Fed. 597 (S.D.N.Y. 1916).51. For text, see Convention with Other American Republics, Feb. 20, 1928.

46 Stat. 2749, T.S. No. 814. Also The International Conferences of AmericanStates 1889-1928, at 435 (Scott ed. 1931).

52. Convention with Other American Republics, supra note 51, art. 1, para. 1.53. U.N. Charter art. 2, para. 3, 4.54. Charter of the Organization of American States art. 15.55. See the Statement of Ambassador Henry Cabot Lodge before the United



tence of a treaty embodying such an obligation is therefore an over-riding consideration, for it essentially assumes that the customaryfreedom of action on the part of the United States has technicallycome to an end. This drastic change in the American position canroughly be attributed to two factors. The first is the firm convictionthat under international law the obligation to prevent revolutionaryactivities against a foreign government does not exist apart fromtreaty,16 and the second is simply that under American law there is nofederal common law of crimes, that federal crimes must be establishedby statutes,57 and that, since treaties made under the authority of theUnited States are the law of the land,8 the President could presum-ably act under a treaty in much the same manner as he could under aCongressional Act.59 This position apparently is not constitutionallytenable under obligations stemming from general international law.°0

It may be added that in the absence of a treaty, the inability of theUnited States to prevent revolutionary activities within its territoryis really traceable to its reluctance to extend the restrictions placedupon its residents on the ground that to do so might involve unwar-ranted limitations upon constitutional liberties.

The preceding observation brings into play another aspect of theAmerican practice, namely, that in attempting to prevent refugeesfrom engaging in revolutionary activities, more specially, in revolu-tionary propaganda, difficulties of a constitutional nature may imme-diately arise. Specifically, governmental action to prevent revolu-tionary activities is likely to give rise to difficulties involving theconstitutional guarantees of freedom of speech and of the press. Thus,when on November 28, 1910, the Mexican Government complainedthat two revolutionaries had gone to Texas to stir up trouble againstMexico, the State Department decisively asserted that "since under theAmerican Constitution liberty of speech and of the press is guaran-teed, mere propaganda in and of itself would probably not fall within

Nations Security Council regarding the Cuban complaint against the UnitedStates, 43 Dep't State Bull. 199, 202 (1960).

56. This is brought out by Professor Julius Stone as regards hostile propa-ganda on the part of the government, but it is believed that the same observationsare applicable to any kind of hostile action by private persons. See, Stone, LegalControls of International Conflict 319 (1954).

57. United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). Seealso Moschzisker, Common Law and Our Federal Jurisprudence, 74 U. Pa. L.Rev. 109, 270, 367 (1925-26).

58. U.S. Const. art. VI, § 2.59. Evans, Self-Executing Treaties in the United States of America, 30 Brit.

Yb. Int'l L. 1953, at 178, 190-94 (1954).60. Cf. Dickinson, The Law of Nations as Part of the National Law of the

United States, 101 U. Pa. L. Rev. 26 (1952).



these [neutrality] statutes and would not therefore be punishablethereunder." 61 In another communication, the Department conclu-sively said:

Regarding the stress which your excellency lays upon the factthat certain of those whom you designated as filibusters areengaging in more or less newspaper propaganda in this country,I have to repeat the statement already made a number of timesto your excellency's predecessor, that the carrying on of a merepropaganda either by writing or speaking does not constitute anoffense against the law of nations, nor does it constitute anoffense against the local law since freedom of speech and of thepress is, under the Constitution of the United States, absolutelyassured to those dwelling within its jurisdiction. 2

Many other instances could be given where similar observationshave been most emphatically made.6 3 The basic difficulty with thisfundamental policy is reasonably obvious. It reflects a lack of aware-ness about such values of peace and security which are pressing forrecognition on the world scene, and which States must effectivelypromote within their internal jurisdiction. To those concerned withthe peaceful co-existence of nations as a requirement of world order,such assertions of the State Department can scarcely meet the inter-national obligations of the United States to afford friendly foreigngovernments adequate protection against revolutionary activities andpropaganda.64 This merely suggests the advisability of not inferringfrom the practice of domestic legal systems any general rule ofinternational law permitting States to ignore revolutionary activitiesof refugees on purely domestic grounds. Even if in practice thisproblem may be real, it should be remembered that the obligations of aState on the international plane cannot be avoided by invokingdifficulties of internal constitutional order.65 It may thus be submitted

61. Note of Secretary of State Knox to the Mexican Ambassador, Dec. 1, 1910,2 Hackworth, op. cit. supra note 17, at 141.

62. Note of Secretary of State Knox to the Mexican Ambassador, June 7, 1911,Id. at 142.

63. Id. at 140-43.64. Dickinson, Defamation of Foreign Governments, 22 Am. J. Int'l L. 840

(1928).65. In this connection, the Permanent Court of International Justice said:

"While on the one hand, according to generally accepted principles, a State can-not rely, as against another State, on the provisions of the latter's constitution,but only on international law and international obligations duly accepted, on theother and conversely, a State cannot adduce as against another State its ownConstitution with a view to evading obligations incumbent upon it under interna-tional law or treaties in force." Advisory Opinion on Treatment of Polish Na-tionals in Danzig, P.C.I.J., ser. A/B, No. 44, at 24 (1932). See also, McDougal,



that the American practice is at variance with the requirements ofinternational law. This suggestion is even more compelling whenconsidering that the federal government has sufficient constitutionalpower to enact legislation on the subject, for the Constitution givesCongress the power "To define and punish... Offenses against theLaw of Nations."6 That revolutionary activities against a foreigngovernment is an offense against the law of nations can hardly bedenied, for it is indissolubly linked with the peace and security ofmankind 7 The fulfillment of obligations of this kind on the internallevel can be strikingly illustrated by a Congressional Act enacted onMay 16, 1884, preventing and punishing the counterfeiting within theUnited States of notes, bonds and other securities of foreign govern-ments.68 This Act was upheld in United States v. Arjona,60 where theCourt gave expression to the international obligations of the UnitedStates in the following terms:

The law of nations requires every national government to use"due diligence" to prevent a wrong being done within its owndominion to another nation with which it is at peace, or to thepeople thereof; and because of this the obligation of one nationto punish those who within its own jurisdiction, counterfeit themoney of another nation has long been recognized.70

It is exceedingly difficult to see why similar considerations do notcontrol situations involving revolutionary activities against foreigngovernments. It may of course be argued that the most difficult consti-tutional objection as to the control of speech and association still hasto be answered. In an attempt to meet this objection, it should berecalled that federal and state statutes have imposed criminal liabilityfor seditious utterances and publications injurious to public moralsand such statutes have been upheld by the courts against attacksgrounded upon freedom of speech and of the press.7 1 It is to be noted,

The Impact of International Law upon National Law: A Policy-Oriented Per-spective, 4 S.D.L. Rev. 25, 47-49, (1959).

66. U.S. Const. art. I, § 8, cl. 10.67. Article 2, paragraphs (5) and (6) of the Draft Code of Offenses Against

the Peace and Security of Mankind, adopted by the United Nations InternationalLaw Commission in 1951, not only prohibit the fomenting of civil strife Nvithinthe territory of a State but also the undertaking or encouragement of terroristactivities in another State. For text, see Report of the International Law Com-mission Covering the Work of Its Third Session, 16 May-27 July, 1951. U.N.Gen. Ass. Off. Rec. 6th Sess., Supp. No. 9, at 18 (A/1858) (1951).

68. 23 Stat. 22 (1884), 18 U.S.C. § 478 (1958).69. 120 U.S. 479 (1887).70. Id. at 484.71. In this connection, see Schenck v. United States, 249 U.S. 47 (1919),

affirming a conviction under the Federal Espionage Act, 40 Stat. 217 (1917), for



however, that the operation of this type of legislation is carefullycircumscribed, for the Supreme Court of the United States hasexplicitly required that it meet two conditions. These conditions are,that the crime be properly defined so as to come well within theexceptions to freedom of speech and of the press,7 2 and that the utter-ances thus punished constitute a "clear and present danger" thatthey will bring about the substantive evil which the legislative bodymight prevent.7 3 The "clear and present danger" rule is by far themost important limitation, from the constitutional standpoint, uponfreedom of speech and of the press. It essentially means that beforean utterance can be penalized by the government it must ordinarilyhave occurred "in such circumstances" or have been of "such a natureas to create a clear and present danger" that it would bring about"substantive evils" within the power of the government to prevent.74

It is therefore submitted that legislation penalizing revolutionaryactivities on the part of refugees could be applied within the samelimits.7 5 Ample support for this conclusion can be found in therecommendations of the President's Committee on Civil Rights of1947 which, in dealing with legislation punishing subversive propa-ganda, reached the conclusion that freedom of speech and of the presswould not be infringed if the "clear and present danger" rule wereapplied along with a clear standard of guilt and adequacy in theprocedure.76 The benefits to be derived from this approach would goa long way towards implanting the rule of law in the world com-munity. 7

7 This has become an imperative of international life, for

causing or attempting to cause insubordination in the military forces of theUnited States by sending to men who had been newly drafted into the armypamphlets denouncing conscription and urging them to assert their rights inopposition to the draft. See also, Dennis v. United States, 341 U.S. 494 (1951),affirming a number of convictions for violation of Section 2 of the Smith Act,54 Stat. 671 (1940), for advocating, advising and teaching the desirability ofoverthrowing the government by force; and Gitlow v. New York, 268 U.S. 652(1925), dealing with a similar sedition law of New York.

72. Cf. Yates v. United States, 354 U.S. 298 (1957); and Joseph Burstyn, Inc.v. Wilson, 343 U.S. 495 (1952).

73. Shenck v. United States, 249 U.S. 47, 52 (1919).74. Ibid.75. It should be mentioned that in enacting the Communist Control Act of

1954, 68 Stat. 775, 50 U.S.C.A. 841, Congress concluded that the existence of theCommunist Party presents "a clear present and continuing danger to the securityof the United States," and that it "should be outlawed." For text, see Barrett,Bruton & Honnold, Constitutional Law: Cases and Materials 1014 (1959).

76. As cited by Wright, The Crime of "War-Mongering," 42 Am. J. Int'l L.128, 132 (1948).

77. For a comprehensive discussion of contributions that the United Statescould make to world order, see McClure, World Legal Order: Possible Contribu-tions by the People of the United States (1960).



today over a hundred States of diverse political systems have cometo play a vital role in world community processes."" Certainly, thepeaceful co-existence of these States in the world community wouldseem to suggest that their governments be secured against revolution-ary activities and hostile propaganda originating in other jurisdic-tions.

IV. INTERNATIONAL EXPERIENCE OF THE UNITED STATES INCASES DEALING WITH SUPPORT OF ACTIVITIES OF REFUGEES

The arguments adduced in the preceding pages must now beexamined in reference to certain specific cases where the UnitedStates Government has been charged before the United Nations withhelping refugees to overthrow their native government. The mostimportant of these cases was perhaps the complaint raised by theIron Curtain Countries before the General Assembly of the UnitedNations on account of Section 101 (a) of the Mutual Security Actenacted by Congress in 1951.79 Section 101 (a) of the Act appro-priates up to $100,000,000:

for any selected persons who are residing in or escapees from theSoviet Union, Poland, Czechoslovakia, Hungary, Rumania, Bul-garia, Albania, Lithuania, Latvia, and Estonia, or the Communistdominated or Communist occupied areas of Germany andAustria, and any other countries absorbed by the Soviet Unioneither to form such persons into elements of the military forcessupporting the North Atlantic Treaty Organization or for otherpurposes, when it is similarly determined by the President thatsuch assistance will contribute to the defense of the NorthAtlantic Area and to the security of the United States.8 0

In asking the United Nations General Assembly to condemn thisprovision, the Soviet representative to the Political Committeestrongly maintained that this legislation was "an aggressive act...[and] intervention in the internal affairs of other Members of theUnited Nations which was incompatible with the United NationsCharter and with international law."' 1 Following closely Soviet

78. Jenks, The Common Law of Mankind ch. 2, at 62 (1958).79. For text, see 65 Stat. 373 (1951).80. This provision has been considered of a highly questionable legal character.

See, Bowett, Self-Defense in International Law 46-47 (1958). Also, Dr. CharlesG. Fenwick maintains that this Act is violative of Article 2, paragraph (5) ofthe Draft Code of Offenses Against the Peace and Security of Mankind in that itundertakes and encourages activities calculated to foment civil strife in anotherState. See Fenwick, Draft Code of Offenses Against the Peace and Security ofMankind, 46 Am. J. Int'l L. 98, 99 (1952).

81. U.N. Gen. Ass. Off. Rec. 6th Sess., 1st Comm. 103 (A/C.1/SR. 472) (1951).



reasoning, the Polish representative made a special reference to theLondon Convention of 1933 which included, inter alia, the support ofarmed bands invading the territory of another State in the definitionof aggression. 12 Wholly apart from the fact that the majority of thedelegates regarded this complaint as groundless and emotionallycharged, as seen by the unconditional rejection of the Soviet resolu-tion condemning the Act, the significant observation must be madethat the American representative nowhere questioned the statementof the law as given by the complaining nations, but, rather, vigorouslydissented from the interpretation attached by those nations to theMutual Security Act.83 Thus, while the American representative inprinciple agreed that support of refugees to rebel against theirgovernment is an international delinquency, he pointedly broughtout that the intention and purpose of the Mutual Security Act was"to assist refugees from political persecution to take part in thedefense of the North Atlantic Community, if they elected to do so. ' 84

As no one at this time questioned the legality of the North AtlanticTreaty Organization,85 the Mutual Security Act was further supportedby a number of delegates on the basis of the United Nations Charter,which among the purposes of the United Nations mentions the takingof "effective collective measures for the prevention and removal ofthreats to the peace, and for the suppression of acts of aggression orother breaches of the peace.... ,,.86 Certainly, the position adopted bythe United States would seem to fall squarely within this provision.87

For present purposes it may perhaps require emphasis that inanswering the Soviet complaint the United States Government didnot challenge the principle that support of revolutionary activities ofrefugees by the State of refuge is an act of aggression. This principlehad been previously invoked by the American representative to theGeneral Assembly in the earlier case of Greece against Albania,Bulgaria and Yugoslavia, in which the Greek Government maintained

82. Id. 1st Comm. 107 (A/C.1/SR.473) (1951).83. Id. 1st Comm. 103 (A/C.1/SR.472) 1951).84. Id. at 104. (Emphasis added.)85. In fact, the Peruvian representative seemed to have linked the legality of

the Mutual Security Act with the legality of the North Atlantic Treaty. See hisremarks, Id. 1st Comm. 119 (A/C.1/SR.475) (1951).

86. U.N. Charter art. 1, para. 1.87. The American representative invoked this provision. See, U.N. Gen. Ass.

Off. Rec. 6th Sess., 1st Comm. 103 (A/C.1/SR.472) (1951). The French repre-sentative likewise said that the parties to the North Atlantic Treaty "had joinedtogether to maintain peace and international security in accordance with the pro-visions of the Charter of the United Nations, it followed therefore that the aimof the amendment to Act 165 was also in accordance with the Charter of theUnited Nations... ." Id. 1st Comm. 113 (A/C.1/SR.474) (1951).



that its northern neighbors were aiding Greek refugees to overthrowtheir government.88 Echoing the sentiments of the majority of themembers of the Political Committee, he sharply declared that "...Albania, Bulgaria and Yugoslavia had violated the principle ofinternational law according to which a State should not assist bandswhich were in rebellion against the legal Government of their coun-try."8 9 This American position is even more striking for anotherreason, namely, that it regards the general principle concerning theduty of a State to protect other States from injurious acts originatingwithin its jurisdiction, which is historically traceable to the AlabamaClaims, as being susceptible of wider application. On this view, thetraditional distinction between organized hostile expeditions, whichare condemned by international law, and revolutionary acts of indi-viduals, which are not, seen in the discussion of American law, has nodefensible basis, for in either case the obligation of prevention be-comes operative. 91 There is much in contemporary international lifethat makes that traditional distinction somewhat obsolete.

The problem has become of the most urgent importance underpresent conditions when thousands of Cuban refugees, fleeing fromthe alleged persecution of their government, have been given asylumin the United States. The knowledge is common that these refugeesare engaged within the United States in revolutionary activitiesdirected at the overthrow of the Cuban regime.2 The matter acquiredinternational concern when the Cuban Government brought thisquestion to the attention of the Security Council of the United Nationson July 18, 1960,13 substantially maintaining that by tolerating sub-versive groups within its jurisdiction, the United States Governmentwas violating its duty of non-intervention, thus presenting a threatto world peace. Upon American denial, and strong support by othernations, the Security Council enacted a resolution on July 19, 1960,noting that the question was under discussion by the Organization ofAmerican States and adjourning consideration of the matter until itreceives a report from that Organization." More recently, when an

88. This case first reached the Security Council on Dec. 3, 1946, and was sub-sequently transferred to the General Asembly on Sept. 15, 1947. See U.N. Gen.Ass. Off. Rec. 2d Sess., 1 Comm. 9 (60th meeting) (1947).

89. Id. at 14.90. United States v. Great Britain (1871). For the record of this arbitration,

see 7 Moore, Digest of International Law, § 1330, 1059-67 (1906).91. Garcia-Mora, International Responsibility for Subversive Activities and

Hostile Propaganda by Private Persons Against Foreign States, 35 Ind. L.J. 306,328 (1960).

92. See N.Y. Times, April 12, 1961, p. 14, col. 1.93. For discussion, see 43 Dep't State Bull. 199 (1960).94. Id. at 204.



invasion against the Cuban Government was allegedly launched fromthe United States, the Cuban Government again brought a complaintbefore the General Assembly on April 17, 1961, charging the UnitedStates with "the international crime of aggression." 95 It is of someinterest to note that the Cuban complaint invoked section 960 of theUnited States Code, which prohibits the beginning or setting on footof a military or naval expedition within the United States.9 Whollyapart from the merits of this controversy, the available evidencestrongly indicates that great numbers of Cuban refugees have beentrained in the United States and other areas in Central America withthe apparent purpose of overthrowing the present Cuban regime.9 7

Even the Justice Department of the United States has been vitallydisturbed by these actions, for it apparently believes that these sub-versive groups are in fact violating the neutrality statutes of theUnited States in attempting to prepare and set up a military expedi-tion against a foreign government.98 This conclusion is powerfullysupported by the fact that a federal district court in Miami indicteda leader of these groups precisely for having attempted to set up amilitary expedition in violation of the law of the United States.99

It is intensely relevant to add that when the Cuban refugees recentlyestablished a provisional government in the United States, the StateDepartment succinctly warned them that this action "would violatethe United States sovereignty and international law," if done withoutthe consent of the United States.100

These two cases where the United States has been charged beforethe world organization of helping refugees to rebel against theirgovernment are highly instructive from the legal and political stand-points, for they clearly show how difficult it is for a government toremain within the framework of its obligations under interna-tional law where the overthrow of a hostile government would clearlybe to its advantage. It may be seen that in such situations the appli-cation of the law is permeated with political interests of the highestorder, and this largely accounts for the reason why it exhibits a highdegree of instability.1 1 In the case of the United States, this over-

95. For the statement of the Cuban position, see N.Y. Times, April 18, 1961,p. 16, col. 1.

96. Foreign Relations Act, 18 U.S.C. § 960 (1958).97. It is similarly true that many Cuban fliers are presently being trained in

Soviet dominated countries. The full story is given in detail in N.Y. Times, April17, 1961, p. 1, col. 4.

98. N.Y. Times, April 12, 1961, p. 1, col. 5.99. Ibid.100. N.Y. Times, March 23, 1961, p. 1, col. 4.101. Strausz-Hupd & Possony, International Relations-In the Age of Conflict

Between Democracy and Dictatorship 354-55 (2d ed. 1954).



riding of international law duties is the more dramatic, because of theapparent American policy to avoid involvement in a situation whichmay not only undermine the American position before the inter-American community, but also supply fresh ammunition to thepropaganda warfare in which nations are presently engaged.

However, to justify legally the American policy of permittingrefugees to engage in revolutionary activities, the attractive thesishas been advanced that the United States can do so under the rightsof self-defense and reprisals, which are allegedly guaranteed by inter-national law. 10 2 As these two rights are of a singular contemporarysignificance, they deserve a special treatment here.

The right of self-defense, as applied to the matter under considera-tion, would seem to assume a violation of the rights of the UnitedStates by continuous subversive acts waged both by the Soviet Unionand its satellites, and by the present Cuban Government. As the toler-ation of these activities by the territorial State is generally regardedas an international delinquency, 0 3 it can convincingly be argued thatthe United States can do the same within its jurisdiction to defendherself against the possibility of attack or subversion. To put thematter in different terms, the right of territorial integrity on the partof the United States gives rise to the right of self-defense againstattack. Implicit in this assertion is the recognition that the right ofterritorial sovereignty of the Communist and Cuban Governments isby no means absolute but must be exercised in manner consistentwith international law. Self-defense by the United States is thusexercised in an attempt to meet a violation of the United States'sovereignty proceeding from another jurisdiction. These propositionsseem unquestioned, but they raise critical issues from the standpointof the rule of law in the world community, and must therefore becarefully scrutinized. The starting point in this analysis is the dutyof States to prevent their sovereignty from being used by individualsto threaten seriously the peace and security of another nation. It hasalready been seen that to allow such activities to go unpunished underthe right of territorial sovereignty would certainly amount to an

102. Whitton, Subversive Propaganda Reconsidered, 55 Am. J. Int'l L. 120(1961). See also, Thomas & Thomas, Non-Intervention: The Law and Its Importin the Americas 274 (1956). This right of self-defense was also invoked to justifyhydrogen bomb tests. See McDougal & Schlei, The Hydrogen Bomb in Perspec-tive; Lawful Measures for Security, 64 Yale L.J. 648 (1955). It should be addedthat since the Mutual Security Act was defended on the basis of the NorthAtlantic Treaty, and the latter is legally supported on Article 51 of the UnitedNations Charter which regulates the exercise of the right of self-defense, thenthe Mutual Security Act itself is sustainable on grounds of self-defense. Seesupra note 87.

103. 1 Oppenheim, International Law 298 (8th ed., Lauterpacht, 1955).



abuse of right for which the menaced community is entitled to re-dress.,, Thus, since the Communist and present Cuban Governmentsare all engaged in activities highly detrimental to the security of theUnited States, it follows logically that the right of self-defense on thepart of the United States immediately arises. And the United Stateshas exercised this right, not by direct intervention, but by toleratingrevolutionary activities against those governments on the part oftheir own nationals seeking asylum in the United States. When theargument is thus posed, the right of the United States to exerciseself-defense appears with breathtaking clarity. The core of the diffi-culty lies, however, in that resort to measures of self-defense, evenin the limited sense here suggested, is an open invitation to the strongto be judex in causa sua and, as Professor Julius Stone has well-observed, it is really incongruous to think of such a measure as beingfunctionally related to orderly world community processes. 0 5 On theother hand, the argument is irresistibly suggested that self-defenseis frankly a legal sanction in an international society devoid of acentralized machinery to enforce the law. 08 Surely, as a propositionof power politics based on the questionable assumption that self-defense is a sanction of the law, this suggestion may be quiteacceptable. As a proposition of law, however, it could scarcely findany justifiable foundation, for self-defense as an enforcement of thelaw can only operate in a situation involving a great power vis-a-visa minor State.0 7 But on any issue on which two great powers areopposed, it is certain that each will exercise the liberties which self-defense allows and, what is even more perplexing, each will identifyits position with the supposed vindication of principles of interna-tional law. The resulting situation may be war against each other;but it would certainly be a curious paradox to regard such actions asemanating from the will of the world community.

The preceding observations merely underlie the important factthat measures of self-defense are not primarily questions of law but ofthe political relations between States,10 8 and therefore, a State policy

104. Lauterpacht, The Function of Law in the International Community 286,303-04 (1933). See also supra note 19.

105. Stone, op. cit. supra note 56, at 287.106. Kelsen, Principles of International Law 15-17 (1953).107. In this context, Professor Edwin D. Dickinson says that "such devices,

theoretically available to all, have actually been a remedy of the strong againstthe weak." See Dickinson, Law and Peace 74 (1951). And Professor Josef L.Kunz, speaking of self-defense, says: "Under such a system a weak State canhardly go to war or take reprisals against a more powerful State, whereas thelatter may abuse its power." See Kunz, Sanctions in International Law, 54 Am.J. Int'l L. 324, 325 (1960).

108. Cf. Bowett, op. cit. supra note 80.



justified on such a theory is highly questionable, to say the least.This conclusion is defensible on the basis of the United NationsCharter, for the Charter has imposed substantial restrictions uponthe right of self-defense. Pertinent in this connection is Article 51,which provides for the exercise of the right of self-defense as follows:

Nothing in the present Charter shall impair the inherent rightof individual or collective self-defense if an armed attack occursagainst a member of the United Nations, until the Security Coun-cil has taken the measures necessary to maintain internationalpeace and security. Measures taken by Members in the exerciseof this right of self-defense shall be immediately reported to theSecurity Council and shall not in any way affect the authorityand responsibility of the Security Council under the presentCharter to take at any time such actions as it deems necessaryin order to maintain or restore international peace andsecurity.109

This provision, contradictory as it is, would seem to be clear andsimple in purpose, for it not only safeguards the traditional right ofself-defense but also restricts it. This article narrows the field forthe exercise of self-defense to circumstances involving an armedattack and only until such a time when the Security Council hastaken the measures necessary to maintain international peace andsecurity. It should therefore be clear that self-defense is limited bothas to the occasion which gives rise to its exercise and as to its dura-tion. Though no authoritative definition of an armed attack has everbeen suggested, it is at least generally agreed that an armed attackis a special type of aggression. 10 The line between armed attack andother kinds of aggression is in particular cases often difficult tomark; presumably, however, "armed attack" is narrower than theterm "aggression. ' 11 It probably includes such acts as invasion of aState by the military forces of another State or some other gravebreach of international peace. On the basis of this analysis, it ishighly questionable that subversive campaigns by the Soviet andCuban Governments would make Article 51 of the Charter operative,unless subversive groups of some dimensions actually invade theterritory of the United States. This analysis of the right of self-defense further shows the shaky foundation it affords to the MutualSecurity Act and to the toleration of revolutionary activities of Cubanrefugees by the United States Government. This of course does notminimize the problem confronting the United States security in the

109. U.N. Charter art. 51.110. Kunz, The Inter-American Treaty of Reciprocal Assistance, 42 Am. J.

Int'l L. 111, 115 (1948).111. Stone, Legal Controls of International Conflict 244 n. 8 (1954).



presence of subversive activities originating in Communist dominatedregimes. It does show, however, that the use of self-defense in themanner suggested is probably no longer admissible under interna-tional law. 12 The encouragement of revolutionary activities of refu-gees is really a political tool that has no conceivable legal basis. Theproblem is indeed a difficult one that must be solved by the futureformulation of the law. It may be added, however, that the long andpainful exchanges between the West and the Communists in theSecurity Council and the General Assembly of the United Nationshave increased, instead of removing, the perplexities of the problem.

It is still possible to base the United States' policies on the rightto resort to reprisals, as Professor John B. Whitton has stronglysuggested. Professor Whitton recently invoked this thesis as regardsaction of the United States calculated to support the aspirations ofthe Soviet dominated peoples to rid themselves of the Communisttyranny.1 1 3 However, a closer study of reprisals under internationallaw reveals conclusions similar to those reached in respect to theright of self-defense. The resort to reprisals is a well-known pro-cedure of international law according to which a nation harmed bythe illegal acts of persons within another country's jurisdiction hasthe right to go into the territory of the latter and punish the offend-ing individuals.1 4 Reprisals thus applied imply the right of theaggrieved community to punish a State for a violation of an inter-national obligation. It can readily be seen, therefore, that the resortto reprisals is nothing more than the application of self-help by theaggrieved community, and it rests upon the theory that the offending

112. It should be mentioned that the right of self-defense was dealt with inthe recent Corfu Channel Case, [1949] I.C.J. Rep. 1, 35, decided by the Inter-national Court of Justice. Rejecting the United Kingdom's claim that under theright of self-preservation she had the right to send her Navy into Albanianterritorial waters for the purpose of effecting a mine-sweeping operation, theCourt unmistakably declared that the action of the British Navy constituted aviolation of Albanian sovereignty. The Court said: "The Court can only regardthe alleged right of intervention as the manifestation of a policy of force, suchas has, in the past, given rise to most serious abuses and such as cannot, whateverbe the present defects in international organization, find a place in internationallaw. Intervention is perhaps still less admissible in the particular form it wouldtake here; for, from the nature of things it would be reserved for the most power-ful States, and might easily lead to perverting the administration of internationaljustice." Judge Hersch Lauterpacht believes, however, that this part of theopinion may be limited to this particular case. See Lauterpacht, The Develop-ment of International Law by the International Court 317 (1958).

113. Whitton, supra note 102, at 120.114. Fenwick, International Law 532-33 (3d ed. 1948). For a comprehensive

treatment of reprisals, see Colbert, Retaliation in International Law (1948).



State has not been able to exert measures of prevention. 11 Butreprisals to rectify wrongs, while permissible by customary interna-tional law before World War I, have been forbidden by internationalinstruments of the greatest authority. Particularly applicable are theLeague of Nations Covenant, the Kellogg-Briand Pact, and theUnited Nations Charter. For present purposes it is pertinent tomention that the United Nations Charter obligates the members ofthe United Nations "to settle their international disputes by peacefulmeans in such a manner that international peace, and security, andjustice, are not endangered.""ir6 This provision would seem to restrictsubstantially the use of reprisals as a means of redress. Restrictingeven more the scope of reprisals is the provision which binds theMembers to refrain from the "threat or use of force against theterritorial integrity or political independence of any State, or in anyother manner inconsistent with the Purposes of the UnitedNations." 117 The combined operation of these provisions showsremarkably well that coercive or punitive measures by a State againstanother, even to remedy illegal actions, are no longer permissiblemethods of settling international disputes." 8 Professor Whitton,however, has suggested that reprisals are still sanctions of the lawand that they are limited only by two rules, namely, the rule of neces-sity and the rule of proportionality. He says in this regard that:

Under the rule of necessity the State undertaking reprisalsmust have tried in vain to obtain redress, for instance, protestingto the other party without result. This rule has been respectedin the present case [the United States case]. Secondly, thedamage inflicted by the reprisals must be reasonably proportionalto the injury suffered by the State applying reprisal.'"

There can be no doubt that these rules were designed to keep re-prisals within measurable bounds. Despite these limitations, theinescapable fact still remains that the resort to reprisals cannot bejustified in the light of standards laid down by the United NationsCharter. Referring to the illegal nature of reprisals, Judge Philip C.Jessup has aptly said that "An aggrieved state is now under a duty, ifit is a Member of the United Nations, to refer its case to the SecurityCouncil and not to take forceful action on its own behalf."12o Profes-

115. 1 Hyde, International Law Chiefly as Interpreted and Applied by theUnited States 244 n. 21 (2d ed. 1945).

116. U.N. Charter art. 2, para. 3.117. U.N. Charter art. 2, para. 4.118. Professor Julius Stone has reached this conclusion. See Stone, op. cit.

supra note 111, at 289-90.119. Whitton, supra note 102, at 121.120. Jessup, A Modern Law of Nations 175 (1948).



sor Whitton's valiant effort to treat reprisals in terms of lawcompletely overlooks that resort to them remains a weapon of thestrong against the weak, and that it is highly incompatible with theconception of a world community firmly grounded on the rule oflaw."12 Just and orderly processes are the essence of the law, andthese objectives are not likely to be attained if conceptions such asthose of self-help, of which reprisal is a type, continue to dominate theinternational legal order.

CONCLUSION

The analysis presented in this article may give rise to the conten-tion that it really leaves a government, against which hostile propa-ganda and subversion are directed, without any legal means ofredress. To counteract such hostile acts by the toleration of revolu-tionary activities by refugees on the basis of alleged rights of self-defense and reprisal has been found to be contrary to existinginternational law. While this conclusion may not yet be free fromdoubt, the body of evidence here gathered would seem to make italmost certain that support of revolutionary activities on the part ofrefugees by the asylum State is tantamount to complicity in the actand, as such, it constitutes a serious breach of the duty of preventionwhich international law has clearly imposed upon States.12 2 Recentdevelopments conclusively show that the peace and security of man-kind are vitally at stake in these situations, for other nations takeadvantage of the political climate to support the faction more inaccordance with their ideology. Moreover, previous experience inmajor wars gives rise to the suggestion that international conflagra-tions often have their roots in local conflicts between minor Statesor in a civil war apparently confined to the territory of one State.123It is precisely because of the potential danger of revolutionaryactivities by refugees that the obligation to prevent them from engag-ing in such activities must remain as a fundamental principle of law.It may further be submitted that the violation of this obligation notonly justifies vigorous protests on the part of the aggrieved govern-

121. Professor Percy E. Corbett says in this connection that resort to suchmeasures actually amounts to a negation of society for "the entity claiming theright also claims the exclusive power to determine when it comes into play." SeeCorbett, Law and Society in the Relations of States 44 (1951).

122. This is what Professor Quincy Wright has termed "subversive interven-tion." See Wright, Subversive Intervention, 54 Am. J. Intl L. 521, 528 (1960).

123. E.g., some writers maintain that World War II actually began in Spainin 1936. See Palmer & Perkins, International Relations: The World Communityin Transition 553 (1953). See also Thompson, Political Realism and the Crisisof World Politics: An American Approach to Foreign Policy 190-91 (1960).


220 WASHINGTON UNIVERSITY LAW QUARTERLY

ment, but also the application of preventive or enforcement measures3n the part of the United Nations. To say this is also to recognizethat since coercive measures can only be applied by the UnitedNations, unilateral resort to such measures has no longer any admis-sible legal basis. This conclusion certainly goes a long way towardsboth mitigating the anarchical elements now existing in the worldcommunity and helping to implant law and justice as the basis of therelations between States.


international law and the control of revolutionary

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